No. 11-564
In the Supreme Court of the United States
STATE OF FLORIDA, PETITIONER,
v.
JOELIS JARDINES, RESPONDENT
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
REPLY BRIEF FOR THE STATE OF FLORIDA
PAMELA JO BONDI
Attorney General of Florida
Tallahassee, Florida
Carolyn M. Snurkowski*
Associate Deputy Attorney General
*Counsel of Record
[email protected]
Charmaine M. Millsaps
Assistant Attorney General
Timothy D. Osterhaus
Deputy Solicitor General
Office of the Attorney General
PL-01, The Capitol
Tallahassee, FL 32399-1050
Telephone: (850) 414-3300
COUNSEL FOR PETITIONER
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................i
TABLE OF AUTHORITIES ................................ iii
I.
The Dog Sniff Was Not A Fourth
Amendment “Search” That Violated Jardines’
Reasonable Expectations Of Privacy Because It
Only Revealed Contraband................................ 3
A.
The Court Should Reject Jardines’
Challenge To The Fourth Amendment
Contraband Rule. ............................................ 3
B. Amici’s New Arguments Against The
Contraband Rule Were Not Argued Or
Factually Developed Below And Should Be
Rejected. .......................................................... 5
II. The Dog Sniff Did Not Convert To An
Unlawful Search Or Trespass Just Because It
Involved A House. .............................................. 8
A. The Detector Dog Did Not Operate “Inside
the Home. ........................................................ 8
B.
The Police Officers Were Lawfully
Present On Jardines’ Front Porch. ................ 9
C. The Detector Dog Was Lawfully Present
With the Police Officers On Jardines’ Front
Porch.............................................................. 15
i
D. The Dog’s Sniff On The Front Porch Does
Not Present The Same Fourth Amendment
Concerns As This Court Addressed In The
High-Tech Device Cases. .............................. 18
CONCLUSION .................................................... 21
ii
TABLE OF AUTHORITIES
Cases
Abbott v. Weekly,
1 Lev. 176, 83 Eng. Rep. 357 (K.B. 1665) ....... 14
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001) ............................................ 6
Amoco Oil Co. v. United States,
234 F.3d 1374 (Fed. Cir. 2000) .......................... 8
Bond v. United States,
529 U.S. 334 (2000) .......................................... 17
California v. Ciraolo,
476 U.S. 207 (1986) .................................... 12, 17
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) .................................... passim
Entick v. Carrington,
19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K.B.
1765) ................................................................. 16
Horton v. California,
496 U.S. 128 (1990) .................................... 12, 18
Illinois v. Caballes,
543 U.S. 405 (2005) .................................. passim
Illinois v. Gates,
462 U.S. 213 (1983) ............................................ 8
iii
Kentucky v. King,
131 S.Ct. 1849 (2011) ................................. 11, 13
Kyllo v. United States,
533 U.S. 27 (2001) .................................... passim
Maryland v. Macon,
472 U.S. 463 (1985) .......................................... 15
McDonald v. United States,
335 U.S. 451 (1948) .......................................... 14
McKee v. Gratz,
260 U.S. 127 (1922) .......................................... 14
Minnesota v. Dickerson,
508 U.S. 366 (1993) .......................................... 12
Rhode Island v. Innis,
446 U.S. 291 (1980) .......................................... 17
Riley v. Harris,
58 N.E. 584 (Mass. 1900) ................................. 14
Texas v. Brown,
460 U.S. 730 (1983) .......................................... 16
United Parcel Serv., Inc. v. Mitchell,
451 U.S. 56 (1981) .............................................. 6
United States v. Daoust,
916 F.2d 757 (1st Cir. 1990) ............................ 13
United States v. Dunn,
480 U.S. 294 (1987) .......................................... 16
United States v. Jacobsen,
466 U.S. 109 (1984) ............................................ 3
iv
United States v. Jones,
123 S. Ct. 945 (2012) .............................. 2, 19, 20
United States v. Karo,
468 U.S. 705 (1984) .................................. 2, 4, 19
United States v. Lee,
274 U.S. 559 (1927) .......................................... 16
United States v. One Million, Thirty-Two
Thousand, Nine Hundred Eighty Dollars in
U.S. Currency ($1,032,980.00),
2012 WL 684757 (N.D.Ohio 2012)................... 20
United States v. Place,
462 U.S. 696 (1983) .................................. passim
United States v. Redmon,
138 F.3d 1109 (7th Cir. 1998) .......................... 15
United States v. Ventresca,
380 U.S. 102 (1965) .......................................... 12
Whren v. United States,
517 U.S. 806 (1996) .......................................... 17
Zivotofsky ex rel. Zivotofsky v. Clinton,
132 S.Ct. 1421 (2012) ....................................... 10
Other Authorities
Kenneth G. Furton, et al., Identification of Odor
Signature Chemicals in Cocaine Using SolidPhase Microextraction-Gas Chromatography
and Detector-Dog Response to Isolated
Compounds Spiked on U.S. Paper Currency, 40
J. Chromatographic Sci. 147 (2002) .................. 6
v
Lewis R. Katz & Aaron P. Golembiewski, Curbing
the Dog: Extending the Protection of the
Fourth Amendment to Police Drug Dogs, 85
Neb. L. Rev. 735 ................................................. 7
Michael S. Macias, The Development of an
Optimized System of Narcotic and Explosive
Contraband Mimics for Calibration and
Training of Biological Detectors, (May 27,
2009) (Ph.D. dissertation, Fla. Int’l Univ.) ....... 7
vi
No. 11-564
In the Supreme Court of the United States
STATE OF FLORIDA, PETITIONER,
v.
JOELIS JARDINES, RESPONDENT
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
REPLY BRIEF FOR THE STATE OF FLORIDA
Neither Respondent Jardines nor the Amici
provide a convincing reason why the Court
should abandon the basic rule that a dog sniff by
a trained drug detection dog is not a Fourth
Amendment search. See United States v. Place,
462 U.S. 696, 707 (1983); City of Indianapolis v.
Edmond, 531 U.S. 32, 40 (2000); Illinois v.
Caballes, 543 U.S. 405 (2005). The simple truth
is that whether a dog sniff takes place outside a
house, a car, or a piece of luggage, it uniquely
reveals just a single bit of information—whether
the odor of contraband is present. In fact,
Jardines does not dispute that the sniff in this
case revealed “only … unlawful activity.” Resp.
Br. 29. In other words, the sniff invaded no
legitimate expectation of privacy.
1
That the context here is the front porch of a
house does not merit a departure from the wellsettled contraband rule.
No reasonable
expectation of privacy or common law trespass
exists, for instance, on the ordinary path to the
front door of a house. Jardines himself concedes
that a broad “implied invitation” extends to
salespersons, delivery persons, Girl Scout cookie
sellers, and even police officers to approach the
front door of a house. Resp. Br. 54. And where
police may lawfully approach, knock, and
interview residents at their front door, this Court
has never restricted them from traditional senseenhancing tools. Even Jardines agrees that
officers may employ field glasses and flashlights.
Resp. Br. 43.
Additionally, the officers’ use of a common
detector dog on the front porch of a house does
not trigger Fourth Amendment problems akin to
invading the “inside” of a house with an
uncommon high-tech device. See, e.g., United
States v. Jones, 123 S. Ct. 945 (2012); Kyllo v.
United States, 533 U.S. 27 (2001); United States
v. Karo, 468 U.S. 705 (1984). Law enforcement
has used detector dogs for centuries past and
repeatedly with this Court’s blessing. With this
history in view there can be no reasonable
concern that upholding the sniff in this case will
propel invasive technologies forward, or suddenly
open the floodgates to sweeping columns of
2
searching dogs. In sum, nothing should keep this
Court from applying the simple principle of Place,
Edmond, and Caballes to uphold the dog sniff at
issue here.
I. The Dog Sniff Was Not A Fourth Amendment
“Search” That Violated Jardines’ Reasonable
Expectations Of Privacy Because It Only
Revealed Contraband.
A. The Court Should Reject Jardines’
Challenge To The Fourth Amendment
Contraband Rule.
Jardines asserts that the detector dog sniff
violated the Fourth Amendment even though it
revealed details “related only to unlawful
activity.” Resp. Br. 29. In his view, the Fourth
Amendment
protects
even
the
escaped
contraband odor of his many marijuana plants
because he “s[ought] to keep [it] private within
the home.” Resp. Br. 16, 19.
Of course, this Court has recognized an
opposite principle: That individuals have no
“legitimate privacy interest” in contraband
because it is illegal to possess it. United States v.
Jacobsen, 466 U.S. 109, 123 (1984); Caballes, 543
U.S. at 408-409 (quoting Place, 462 U.S. at 707 &
Jacobsen). In fact, for nearly three decades the
Court has said that dog sniffs are not a search
3
because they can reveal only the presence of
illegal contraband. Place, 462 U.S. 696; Edmond,
531 U.S. 32; Caballes, 543 U.S. at 408-09
(characterizing dog sniffs as “sui generis”).
Certainly the defendants in Place, Edmond, and
Caballes had the very same goal as Jardines to
conceal “details” of their contraband within their
“private” luggage and cars.
Jardines’ argument essentially is that ‘a house
is different.’ Resp. Br. at 25-28. But this Court
did not base its prior dog sniff decisions on the
thing that holds or conceals illegal narcotics, but
on the unique fact that dog sniffs reveal only
contraband. Place, 462 U.S. at 707; Edmond, 531
U.S. at 40; Caballes, 543 U.S. at 408-09. The
modest information gleaned from dog sniffs also
separates it from the trio of cases Jardines cites
for the principle that “all details in the home are
held safe from prying government eyes.” Resp.
Br. 21. In Karo and Hicks, the government
physically invaded the home and obtained private
information—clearly a Fourth Amendment
problem. And in Kyllo they could detect “perfectly
lawful activity” going on inside the home using a
high-tech imagery device on the outside. The dog
sniff here—which, as discussed infra, was made
from an area where officers had a legal right to
be—has neither problem. The court should apply
its dog sniff precedents to the context here
because the sniff revealed only contraband (as
4
Respondent admits, Resp. Br. 29), without
disclosing lawful goings-on inside the home, or
making physical entry.
In sum, a dog sniff made outside a house should
be considered no different from those in Place,
Edmond, and Caballes; it “reveals no information
other than the location of a substance that no
individual has any right to possess [and] does not
violate the Fourth Amendment.” Caballes, 543
U.S. at 410.
B. Amici’s New Arguments Against The
Contraband Rule Were Not Argued Or
Factually Developed Below And Should Be
Rejected.
Amici make two new arguments related to the
dog sniff contraband rule that should not be
entertained for the first time now. First, they
argue that the contraband rule does not apply to
drug-detection dogs because they can alert to
legal substances. Loyola Br. 18-32; NACDL Br.
11-15. Next, an amicus argues that dog sniffs of
houses are not reliable because of the distances
involved with the sniffs. Loyola Br. 32-34.
Because these arguments are presented for the
first time now and without a supporting
evidentiary basis, they should not be considered.
This Court generally does not entertain original
5
claims raised by parties at this point in a case,
much less amici. United Parcel Serv., Inc. v.
Mitchell, 451 U.S. 56, 60, n.2 (1981) (declining to
consider an amicus’ argument “since it was not
raised by either of the parties here or below”);
Adarand Constructors, Inc. v. Mineta, 534 U.S.
103, 110 (2001) (per curiam) (noting that this “is
a court of final review and not first view”).
Jardines did not raise these arguments in the
state appellate courts, in his brief in opposition
filed in this Court, or in his merits brief filed in
this Court. Nor were they ruled upon by the
Florida Supreme Court.
In any event, amici’s research appears to show
the opposite—that dogs do not alert to anything
but drugs. See e.g., Kenneth G. Furton, et al.,
Identification of Odor Signature Chemicals in
Cocaine Using Solid-Phase Microextraction-Gas
Chromatography and Detector-Dog Response to
Isolated Compounds Spiked on U.S. Paper
Currency, 40 J. Chromatographic Sci. 147, 153
(2002). Professor Furton, one of the experts
relied upon by amici, for example, noted that
perfume odors containing methyl benzoate are
“quite different” and can be “readily”
distinguished by drug-detection dogs. Id. at 154155. Amici offer no persuasive reason why this
logic would not extend to other substances as
6
well.1 This Court should not attempt to address
this new issue without a record.
Moreover, the argument that dog sniffs of
houses are not reliable due to the distance
involved was affirmatively waived in the state
courts. When directly questioned during the oral
argument in the Florida Supreme Court, counsel
for Jardines stated that he was not challenging
the detector dog’s accuracy.2 That is why the
record is silent on this issue. Amici may not raise
One amicus implies that heroin-detection dogs will
mistakenly alert upon vinegar instead of heroin. Loyola
Br. 26-29.
The dissertation cited, however, states
explicitly that drug-detection dogs do not alert to vinegar.
Michael S. Macias, The Development of an Optimized
1
System of Narcotic and Explosive Contraband Mimics for
Calibration and Training of Biological Detectors, (May 27,
2009) (Ph.D. dissertation, Fla. Int’l Univ.), available at
http://digitalcommons.fiu.edu/etd/123, 115-118 (stating “as
expected, none of the canines (0 of 14) showed interest in
pure acetic acid or pure salicylic acid samples.”). Informal
studies also establish that marijuana-detection dogs do not
mistakenly alert to hemp. Lewis R. Katz & Aaron P.
Golembiewski, Curbing the Dog: Extending the Protection
of the Fourth Amendment to Police Drug Dogs, 85 Neb. L.
Rev. 735, 756 n.77 (noting that the authors, who were
critical of the dogs’ accuracy, informally tested a drugdetection dog, which did not mistakenly alert and was
rather “uninterested in hemp products”).
The oral argument is available online at
http://wfsu.org/gavel2gavel/archives/flash/08-2101.php
2
7
an argument affirmatively waived by a party. Cf.
Amoco Oil Co. v. United States, 234 F.3d 1374,
1378 (Fed. Cir. 2000) (observing that it is the
party’s case, not a joint appeal by the party and
amicus; rather, the party must raise the issues it
wishes the court to address); see also Illinois v.
Gates, 462 U.S. 213, 221, 224 (1983) (refusing to
consider an issue where the record was
inadequate). What is more, the issue in this case
is not about the reliability of dog sniffs, but
whether a sniff outside a house violates
reasonable expectations of privacy.
II. The Dog Sniff Did Not Convert To An
Unlawful Search Or Trespass Just Because It
Involved A House.
Jardines asserts that Place, Edmond, and
Caballes do not apply because this case involves
the revelation of “Details Inside the Home.” Resp.
Br. 26, 29. His argument is that dog sniffs
involving a house are categorically different, even
if, as he concedes, the only detail revealed by a
dog sniff is “unlawful activity.” Id. at 29.
A. The Detector Dog Did Not Operate “Inside
The Home.”
At the outset, it is important to clarify that
even though Jardines’ Brief talks of the
revelation of details “inside the home” more than
8
a dozen times, the dog sniff in this case did not
involve any physical entry into Jardines’ house.
Just as in Place, Edmond, and Caballes, where
the dogs did not physically enter into private
luggage or cars, this case did not involve a
physical intrusion “inside the home” as Jardines’
brief implies. Instead, the detector dog and his
officer handler only briefly walked up to the
house’s front door along the customary path. The
dog alerted and then left the scene with his
officer-handler.
The dog’s alert was used
thereafter as a basis for obtaining a warrant to
enter the house.
Moreover, the dog sniff here revealed only the
presence of contraband narcotics in the air
outside the front door where the officer and dog
were lawfully present. In this way, the sniff was
“much less intrusive than a typical search”
sparing the owner “the embarrassment and
inconvenience entailed in less discriminate and
more intrusive investigative methods.” Place, 462
U.S. at 707.
B. The Police Officers Were Lawfully Present
On Jardines’ Front Porch.
Jardines extends his ‘house is different’
argument, for the first time in this case, beyond
detector dogs. He argues that observations and
evidence-gathering by the police officers
9
themselves constitute a Fourth Amendment
search if made on the front porch of a house.
Resp. Br. 16, 19; see also id. 48 (curtilage
argument). Whereas at once Jardines concedes
that officers—like salespersons, delivery persons,
and Girl Scouts—have an implied invitation to
approach a house “to speak to an occupant”
(Resp. Br. 54), he states in broad fashion that
“Police Action Which Reveals Any Detail An
Individual Seeks To Keep Private Within The
Home Is A Fourth Amendment Search.” Id. 16;
see also id. 19 (asserting the same as to
“government activity”).
As a threshold matter, it is a new argument for
Jardines to assert that the officers’ visit alone,
without a detector dog, constituted a Fourth
Amendment search. This argument was not
made in the state courts and should not be
entertained now. Zivotofsky ex rel. Zivotofsky v.
Clinton, 132 S.Ct. 1421, 1430 (2012) (observing
that ours is “a court of final review and not first
view” and that “we do not decide in the first
instance issues not decided below.”).
His
objection in the state courts was based totally on
the detector dog, not the conduct of the two
officers. Indeed, Jardines conceded, in his initial
brief to the Florida Supreme Court, that the
homeowner’s implied invitation to visitors
applied equally to law enforcement officers
subject only to reasonable limitations such as the
10
hour of the day or night. IB 34-36; RB 6.3
Jardines also conceded at the oral argument in
the Florida Supreme Court that the officers going
to the porch did not violate any expectation of
privacy.4 So Jardines’ claim now that the officers’
conduct itself was an invasion of privacy is being
raised for the first time and should be rejected.
Moving on, Jardines incorrectly claims that a
Fourth Amendment search occurs whenever “any
detail an individual seeks to keep private” about
his home is revealed. Resp. Br. 16, 19. For
instance, this Court has never granted a privacy
or possessory interest in odors, contraband or not,
that waft outside where any invitee can smell
them. See, e.g., Kentucky v. King, 131 S.Ct. 1849
(2011) (involving officers who happen upon a
strong scent of marijuana emanating from an
apartment).5 Ciraolo, Horton, and Dickerson
Jardines’ initial brief in the Florida Supreme Court is
available on at
http://www.floridasupremecourt.org/clerk/briefs/2008/20012200/08-2101_Ini.pdf
Jardines’
reply
brief
in
available
online
at
http://www.floridasupremecourt.org/clerk/briefs/2008/20012200/08-2101_Reply2.pdf.
3
The oral argument is available online at
http://wfsu.org/gavel2gavel/archives/flash/08-2101.php
4
Respondent notes that the one officer who approached
Jardines’ front door claimed himself to smell the
5
11
have not been overruled; the plain view doctrine
is alive and well. See California v. Ciraolo, 476
U.S. 207, 212 (1986) (rejecting a challenge to “the
authority of government to observe his activity
from any vantage point or place if the viewing is
motivated by a law enforcement purpose, and not
the result of a casual, accidental observation”);
Horton v. California, 496 U.S. 128, 136 (1990)
(recognizing the plain view exception to the
warrant requirement but noting it is “an
essential predicate” to the exception that “the
officer did not violate the Fourth Amendment in
arriving at the place from which the evidence
could be plainly viewed”); Minnesota v.
Dickerson, 508 U.S. 366, 375-377 (1993)
(expanding the plain view doctrine to include its
sibling the plain feel doctrine). And under its
sibling ‘plain smell doctrine,’ what an officerinvitee smells outside a house is not a search and
is properly considered as the basis for a search
warrant of a house. United States v. Ventresca,
380 U.S. 102, 104, 111 (1965) (finding probable
cause to issue a search warrant of a house based
on agents smelling odor of fermenting mash when
walking on a sidewalk in front of house because a
“qualified officer’s detection of the smell of mash
has often been held a very strong factor in
contraband, while the other officer standing further back
smelled only the mothballs lying at the base of the front
porch. Resp. Br. 42 n.7; id. at 3.
12
determining that probable cause exists so as to
allow issuance of a warrant.”).6
Furthermore, Jardines’ argument to keep
officers from gathering incriminating information
in areas in front of a home that are open to
invitees does not comport with this Court’s
decisions. See Kentucky v. King, 131 S.Ct 1849,
1862 (2011) (observing that when “law
enforcement officers who are not armed with a
warrant knock on a door, they do no more than
any private citizen might do”); United States v.
Daoust, 916 F.2d 757, 758 (1st Cir. 1990) (Breyer,
C.J.) (“A policeman may lawfully go to a person’s
home to interview him.”). Generally on-duty
officers do not make house calls to chit-chat. The
expected purpose of any “knock and talk” would
be to gather evidence via conversation. And
there is no discernible difference between
interviewing and gathering evidence from a
resident. One is often merely a form of the other.
So the officers’ investigative actions in walking to
the door and knocking while looking, listening,
feeling and smelling for criminality along the
way, did not transform their lawful investigation
into a search.
The detector dog here was a qualified marijuanadetection dog just like the qualified agents in Ventresca.
In fact, Jardines conceded in state court that Franky, the
dog in this case, was a well-trained, drug-detection dog.
6
13
By the same token, Jardines is incorrect that
this case involves a trespass. Resp. Br. 47. Under
the custom exception to the common law of
trespass, a person going to the front door is not
committing trespass.7
This is an age-old
proposition. As Chief Justice Holmes explained,
when sitting on the Massachusetts Supreme
Court, approaching a house for the social purpose
of visiting is “familiar to every one” and a
“practice common in this part of the world” and
therefore, “entry upon another’s close, or into his
house, at usual and reasonable hours, and in a
customary manner, for any of the common
purposes of life, cannot be regarded as a
trespass.” Riley v. Harris, 58 N.E. 584, 584
(Mass. 1900) (Holmes, C.J.). Rather, a person
using the common path to the front door of a
Abbott v. Weekly, 1 Lev. 176, 83 Eng. Rep. 357 (K.B.
1665) (concluding there was no trespass from dancing on
the plaintiff’s close based on custom because the villagers
had held dances there from “time out of memory”); McKee
v. Gratz, 260 U.S. 127, 136 (1922) (Holmes, J.)(holding
that the defendants, who took mussels from a stream on
the plaintiff’s land, were not trespassers as a matter of
law; rather, they may be licensees, noting that there were
exceptions to the strict rule of the English common law as
to entry upon a close based on American custom and
habits.); cf. McDonald v. United States, 335 U.S. 451, 458
(1948) (Jackson, J., concurring) (distinguishing between
officers being admitted as guests to a rooming house, who
like “any other stranger, could then spy or eavesdrop on
others without being trespassers” and trespassing).
7
14
house, is an invitee. United States v. Redmon,
138 F.3d 1109, 1130 (7th Cir. 1998) (en banc)
(Posner, J., dissenting) (explaining that police
officers must confine themselves to the prescribed
route rather than roaming the property at will);
cf. Maryland v. Macon, 472 U.S. 463, 470 (1985)
(explaining that a government agent may enter
an open business in the same manner as a
private person).
The officers here did not
trespass by straying from the common path to the
front door.8 See Pet. App A31, A112 (noting that
the police officers were lawfully in place).
C. The Detector Dog Was Lawfully Present
With The Police Officers On Jardines’
Front Porch.
Furthermore, the presence of a detector dog’s
nose did not transform the officers’ visit into a
Fourth Amendment problem. That is, first, as
The dissenting Florida district court opinion upon which
Jardines relies lists officer conduct that might violate the
curtilage of a home along the common path to the front
porch. Resp. Br. 58. But those observations help Jardines
not one whit. The officers here did not cordon off the front
porch; they did not dust for fingerprints; and they did not
deploy a magnetometer or sonar. Rather, one of the two
officers knocked on the front door. And approaching and
knocking on the front door is not a trespass and does not
violate a resident’s reasonable expectation of privacy.
8
15
discussed above, the officers’ investigative actions
in walking to the door to knock, while making
observations along the way is not a search. And,
by extension, the affirmative decision to take a
drug-detection dog along to assist their ability to
sniff odors did not transform the investigation
into a search.
Just as the officers might have used eyeglasses
or a flashlight on the common path to the door,
detector dogs have been used for centuries to
enhance the ability of law enforcement to smell
molecules in the air. See, e.g., United States v.
Dunn, 480 U.S. 294, 305 (1987) (use of a
flashlight “did not transform their observations
into an unreasonable search within the meaning
of the Fourth Amendment”) (citing Texas v.
Brown, 460 U.S. 730, 739-740 (1983) & United
States v. Lee, 274 U.S. 559, 563 (1927)).
Respondent himself concedes that officers may
use sense-enhancing aids like field glasses and
flashlights. Resp. Br. at 43. A detector dog is
little different. As with the presence of the
officers’ own noses, the use of a dog’s nose when
the officers were lawfully present on the front
porch does not transform this case into a Fourth
Amendment problem. See Entick v. Carrington,
19 How. St. Tr. 1029, 95 Eng. Rep. 807
(K.B.1765) (under common law a dog’s nose, like
a human eye, cannot be guilty of trespass); Kyllo,
16
533 U.S. at 32 (examining “the portion of a house
that is in plain public view” is “no search at all.”).
In addition, it is the officer’s objective actions of
walking to the front door and knocking on it, not
their decision to bring along a detector dog, which
is relevant to the Fourth Amendment analysis.
See Illinois v. Caballes, 543 U.S. 405, 408 (2005)
(rejecting an argument that the shift in purpose
from a traffic stop to a drug investigation was a
search). Bond v. United States, 529 U.S. 334, 338,
n.2 (2000) (explaining that an officer’s subjective
intent is “irrelevant in determining whether that
officer’s actions violate the Fourth Amendment
...; the issue is not his state of mind, but the
objective effect of his actions”); Whren v. United
States, 517 U.S. 806, 813 (1996) (stating that “we
have been unwilling to entertain Fourth
Amendment challenges based on the actual
motivations of individual officers”); Ciraolo, 476
U.S. at 212 (rejecting an argument that the
investigation itself amounted to a search because
the flight was not a routine patrol); Rhode Island
v. Innis, 446 U.S. 291, 301-302 (1980) (holding
that a police officer’s subjective intent to obtain
incriminatory statements is not relevant to
determining whether an interrogation has
occurred). Jardines argument, that the officers’
purpose in taking the dog to smell for marijuana
(Resp. Br. 51) amounts to a search is incorrect
and hearkens back to the inadvertence
17
requirement abandoned by this Court over two
decades ago. Horton, 496 U.S. 128 (holding there
is no inadvertence requirement to the plain view
doctrine). The officers’ decision to approach and
knock on the front door with a detector dog was
neither an invasion of privacy nor a trespass.
D. The Dog’s Sniff On The Front Porch Does
Not Present The Same Fourth Amendment
Concerns As This Court Addressed In The
High-Tech Device Cases.
Finally, Jardines relies heavily upon Kyllo and
Karo to support his assertion that an outside
sniff by a detector dog “intru[des] into the home”
and constitutes a Fourth Amendment search.
Resp. Br. 39. But Jardines’ attempt to group this
case with these other “house” cases does not tell
the whole story.
In the first instance, the Court in Caballes
found dog sniffs to be “entirely consistent” with
this Court’s decision in Kyllo. Caballes, 543 U.S.
at 409-10. Specifically, the Court distinguished
Kyllo’s imaging device that was capable of
detecting “perfectly lawful activity,” from a “dog
sniff … that reveals no information other than
the location of a substance that no individual has
any right to possess [and] does not violate the
Fourth Amendment.” Id. at 410. The “critical”
distinction between the use of a dog sniff and the
18
use of thermal imaging technology to survey a
house is in what they detect. The device in Kyllo
was capable of detecting “intimate details” of a
home, “such as at what hour each night the lady
of the house takes her daily sauna and bath.” Id.
A detector dog’s sniff outside the front door
reveals no perfectly lawful intimate details inside
the home, but only whether the odor of
contraband has wafted outside.
Karo, on the other hand, involved the use of a
tracking beeper device that physically invaded a
home and “reveal[ed] critical fact[s] about the
interior of the premises.” Id. at 715. The Court
held that government could not “obtain
information that it could not have obtained by
observation from outside.” Id.
In this last
statement,
Jardines’
case
is
perfectly
distinguished.
The dog sniff here occurred
outside the home in an area where the officers
were permitted to be. Different from Karo, the
dog never entered Jardines’ house and did not
reveal details about the inside of the house, but
only that the air outside contained the odor of
contraband.
Kyllo, Karo, and Jones v. United States also are
different because they involve advanced
technology and not a centuries-old, traditional
19
tool of law enforcement.9 In this series of cases,
this Court has been concerned about the
Government’s use of high-tech devices, such as
the thermal imager in Kyllo and the GPS
tracking device in Jones, eroding the traditional
protection embodied in the Fourth Amendment.
As the majority opinion in Kyllo noted,
technology has the ability “to shrink the realm of
guaranteed privacy” and to leave a “homeowner
at the mercy of advancing technology.” Kyllo, 533
U.S. at 34, 35. And as the concurring opinion in
Jones noted, “new technology” provides increased
convenience but “at the expense of privacy” and
the “emergence of many new devices” permits
easy and cheap monitoring of a person’s
movement in a manner that was not previously
likely due to the time and expense that would
have been required. Jones, 132 S. Ct. at 962-964
(Alito, J., concurring).
In contrast, dogs are not an advancing
technology that would increasingly threaten
privacy.
While training methods may have
improved over the centuries, dogs simply do not
present the same concerns or potential for
Dogs have been used by English constabularies to assist
in police work from the time of the Middle Ages. See
9
United States v. One Million, Thirty-Two Thousand, Nine
Hundred Eighty Dollars in U.S. Currency ($1,032,980.00),
2012 WL 684757, 35 (N.D.Ohio 2012).
20
invasiveness as do these other emerging, hightech devices.
CONCLUSION
The Florida Supreme Court’s decision should be
reversed.
Respectfully submitted,
PAMELA JO BONDI
Attorney General of Florida
Carolyn M. Snurkowski*
Associate Deputy Attorney General
*Counsel of Record
[email protected]
Charmaine M. Millsaps
Assistant Attorney General
Office of the Attorney General
PL-01, The Capitol
Tallahassee, FL 32399-1050
Telephone: (850) 414-3300
COUNSEL FOR PETITIONER
21